Patton Boggs TechComm Industry Update - July 20, 2012

    View Author 20 July 2012

    July FCC Open Meeting

    The following items were discussed at the Federal Communication Commission’s (FCC) July 19, 2012 Open Meeting:

    Next-Generation Mapping Presentation: The FCC staff presented new mapping tools available at, and discussed how to use mapping tools to increase transparency and data-driven decision-making.

    Wireless Broadband White Spaces Presentation: The Wireless Telecommunications Bureau and the Office of Engineering & Technology provided an update on new technological developments that will permit increased use of wireless broadband white spaces.

    Measuring Broadband America Report 2012 Presentation: This presentation updated the FCC’s Report from last year that tested and reported broadband speeds and performance data in collaboration with Internet Service Providers.

    Items Tentatively Proposed for August FCC Open Meeting

    The following items are tentatively scheduled for the FCC’s August 3, 2012 Open Meeting:

    • Cable Television Technical and Operational Requirements: The FCC will consider an NPRM to update its rules to reflect the cable industry’s transition from analog to digital operations.
    • Removing Barriers to Wireless Backhaul: The FCC will consider an order and NPRM that seeks to remove regulatory barriers to make better use of Fixed Service (FS) spectrum and provide additional flexibility to enable FS licensees to reduce operational costs and facilitate the use of wireless backhaul in rural areas.

    Television Stations Must Start Placing Local Public Files Online Beginning August 2, 2012

    Beginning August 2, 2012, television stations will be required to post new local public file (LPF) documents to the FCC’s LPF website and will have six months to upload existing LFP documents to the FCC’s LPF website. Only affiliates of the four top television networks in the top 50 markets are required to post their political file materials beginning August 2. The remaining television stations will be required to post their political file materials beginning July 1, 2014. Television stations are not required to post any of their political file materials dated before August 2.

    The FCC held a public demonstration of its LPF website on July 17, 2012. The FCC rejected a request filed by the National Association of Broadcasters (NAB) to stay the FCC’s online LPF rules. NAB also filed a Petition for Review and Emergency Motion for Stay Pending Judicial Review with the U.S. Court of Appeals for the D.C. Circuit. NAB claims that the rules are arbitrary and capricious, and inconsistent with the Bipartisan Campaign Reform Act. The organization further claims that the “balance of hardships and the public interest also favor a stay.”

    Draft Eligible Service List for Funding Year 2013 for the Schools and Libraries or E-rate Program Available for Comment

    The Funding Year (FY) 2013 E-rate Program draft eligible services list (Draft ESL) was recently released by the FCC for comment. The FCC reorganized the Draft ESL to “reflect how school and library applicants plan for and seek technology and services” but did not make any service eligibility changes from the FY 2012 ESL. Priority One eligible services are divided into three categories: Communications Connectivity (digital transmission services, fiber and Internet access), Voice Services (telephone services, telephone service components and interconnected VOIP), and Other Designated and Related Services (E-mail, voice mail and web hosting). Priority Two eligible services are also divided into three categories: Internal Connections, Basic Maintenance of Internal Connections, and Miscellaneous. Comments and reply comments are due by August 6, 2012, and August 11, 2012, respectively.

    First Responder Interoperability Requirements Transmitted to FirstNet

    The FCC formally transmitted technical standards to govern interoperability on the 700 MHz nationwide public safety broadband network to the First Responder Network Authority (FirstNet), the authority charged with building the network. Under the Middle Class Tax Relief and Job Creation Act that Congress passed earlier this year, the FCC was asked to assemble a board of experts, the Technical Advisory Board for First Responder Interoperability, to develop minimum technical requirements to ensure a nationwide level of interoperability. As required by the law, FirstNet must incorporate all of the recommendations that are aimed at ensuring interoperability into their requests for proposals (RFPs). Commissioner Jessica Rosenworcel praised the Interoperability Board for doing “a stellar job” and noted that the Interoperability Board’s recommendations have received widespread recognition for their technical rigor and for providing FirstNet with the flexibility necessary to get the network up and running. Those guidelines had been prepared and given to the FCC in May by the Interoperability Board that was comprised of state and local officials, public safety representatives, company executives and others. Now, FirstNet must take the requirements and, without material change, incorporate them into the RFPs on construction, operation and management of the network.

    FCC Workshop on TV Broadcaster Relocation Fund and Incentive Auctions

    The FCC recently held a workshop to discuss the structure of the TV Broadcaster Relocation Fund, which will be used to reimburse broadcasters for their costs associated with channel reassignments as a result of the repacking authorized by the Middle Class Tax Relief and Job Creation Act to facilitate incentive auctions. Broadcasters emphasized the need for the FCC to build flexibility into the process and to include enough funding to cover hidden costs. Wireless providers stressed that they also need time for planning and certainty as to when the spectrum will be available.

    FCC Enforces Sirius XM Radio and Comcast-NBCU Merger Conditions

    The FCC and Sirius XM Radio entered into a Consent Decree terminating the FCC’s investigation into whether the company raised its prices in violation of the pricing merger condition included in the FCC’s approval of the Sirius-XM Radio merger. Sirius-XM agreed to a $240,000 forfeiture and the pricing merger condition was not extended.

    Comcast entered into a Consent Decree with the FCC because the company allegedly has not adequately marketed its standalone broadband services as required by a condition of the FCC’s approval of the Comcast/NBCUniversal merger. Comcast agreed to an $800,000 forfeiture and a one year extension of the merger condition. Chairman Genachowski said: “Today’s action demonstrates that compliance with Commission orders is not optional. The remedies announced today will benefit consumers and foster competition, including from online video and satellite providers, by ensuring that standalone broadband is truly available in Comcast’s service areas.”

    FCC v. Fox Indecency Decision – “Void for Vagueness”

    The Supreme Court ruled in FCC v. Fox Television Stations, Inc. that the FCC’s application of its 2004 revised indecency policy to events that occurred in 2002 and 2003 did not provide adequate notice under the Due Process clause of the U.S. Constitution’s Fifth Amendment. The FCC eliminated the fleeting expletive exemption from its indecency policy in 2004. Writing for the Court in a 7-0 decision, Justice Kennedy explained that the FCC’s application of its 2004 indecency policy to broadcast content from 2002 and 2003 failed under the Court’s “void for vagueness” doctrine, because neither Fox nor ABC could have known in 2002 or 2003 what conduct the FCC’s indecency policy proscribed. The narrow decision does not address the underlying constitutionality of the FCC’s indecency policy but, it did state that the FCC is “free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.”

    Court Upholds FCC Rules to Reallocate USF Funds for Broadband

    The U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s order to allocate reclaimed USF funds from wireless carriers to the Connect America Fund, which supports the expansion of broadband service. Chairman Genachowski stated: “Funding previously relinquished by some carriers has been used as a fiscally responsible down payment on those reforms. The Court’s opinion ensures that the FCC will continue to be able to use funds on hand to rapidly implement the Connect America Fund and spur billions of dollars in private investment, without increasing contributions paid by consumers and businesses.” 

    Future of Wireless Broadband Forum

    At the FCC’s Future of Wireless Broadband forum, participants discussed the impact of developments in filtering technology on band planning, LTE trends and their implications for future band plans, and network operator perspectives on band plan design. In his opening remarks, FCC Chairman Genachowski stressed the need to change the way parties think about wireless band plans as we migrate from voice to data. Other topics included the role of guard bands, standard setting, whether more spectrum should be set aside for downlink operations than for uplink, and device interoperability.

    Executive Order: Accelerating Broadband Infrastructure Deployment

    President Barack Obama issued an Executive Order focusing on broadband infrastructure deployment on federal land, buildings and rights of way; tribal areas; and underserved communities. In general, executive departments and agencies are to facilitate the expansion of broadband infrastructure, establish a multi-agency working group to facilitate broadband deployment, and review “dig once requirements” for broadband deployments.

    RUS Broadband Amendment

    The Senate approved a broadband-related amendment and rejected two others as part of its consideration of the Farm Bill. The approved amendment from Sen. Mark Warner (D-VA), requires the Department of Agriculture to ensure at least 25 percent of households in a proposed project area qualify as unserved or underserved. In the past, critics have argued that too much of this government money went to areas that already have sufficient connectivity. The amendment also calls for government accountability by boosting reporting requirements, and it requires that more robust information be included in broadband mapping. Critics of the Warner amendment, however, say its conditions could encourage overbuilding and that eligibility and reporting requirements will discourage applications, thereby leading to delays in rolling out broadband to underserved and unserved areas. Two other broadband amendments, sponsored by Sen. Jim DeMint, were rejected. Both amendments essentially aimed to reign in or lower broadband-related spending by the Agriculture Department.

    Telseven $1.8 million USF Contribution NAL for Forfeiture – FCC Pierces the Corporate Veil

    The FCC issued a Notice of Apparent Liability for more than $1.7 million against Telseven, LLC, for failure to make required contributions related to the Universal Service Fund (USF), the North American Numbering Plan, and local number portability. The proposed fine included an upward adjustment of approximately $500,000 to the base forfeiture, representing one-half of the largest amount of the company’s unpaid USF contributions. Notable was the FCC’s proposal to “pierce the corporate veil” in the context of a forfeiture proceeding, and hold Telseven’s sole officer and director individually liable for the actions of Telseven, even though Telseven is 100 percent owned by a revocable trust. This is a sharp departure from prior practice. The FCC stated that it could “pierce the corporate veil” in this context based on (1) a common identity of officers, directors or shareholders; (2) common control between entities; and (3) a need to preserve the integrity of the Communications Act and prevent entities from defeating its purposes.

    FCC to Host Supplier Diversity Conference and Workshop

    On July 20, 2012, the FCC will host a supplier and diversity conference workshop for small, minority-owned and woman-owned businesses. The agenda includes speakers from private telecommunications and technology companies, the Department of Defense, the Department of Transportation and the FCC. Topics will include contracting and procurement best practices. One-on-one counseling for companies with the speakers will also be available during the afternoon session.

    Cybersecurity Bill to be Considered

    The Senate could take up S. 2105, the Cybersecurity Act of 2012, on the floor as early as next week. However, the main issues of contention continue to be (1) whether standards for critical infrastructure will be voluntary or mandatory, and (2) privacy/civil liberties issues concerning information sharing. In the meantime, Army General Keith Alexander, Head of the U.S. Cyber Command and the National Security Agency (NSA) spoke to Congress stressing the need for immediate passage of the bill before there is a crisis.

    FCC Oversight Hearing

    All five FCC Commissioners testified at a House Subcommittee on Technology and Communications hearing titled “Oversight of the Federal Communications Commission.” Major themes of the hearing included the upcoming incentive auctions, special access rules, and the suspension of BTOP grants. Chairman Julius Genachowski stated that proposals for the design of the incentive auctions would be considered by this fall. Rep. Doris Matsui (D-CA) suggested that 1755-1780 MHz spectrum be reallocated by the government and paired in the auctions. Several members of Congress spoke vehemently against the proposed suspension of BTOP grants; namely Reps. Greg Walden (R-OR) and Joe Barton (R-TX). Rep. Henry Waxman (D-CA) asked that the FCC carefully scrutinize Verizon’s proposed deal with SpectrumCo. There was a consensus among the Commissioners and the Committee that the FCC needs more data to reconsider its special access rules.

    New U.S.-Mexico Spectrum Sharing Agreements

    The FCC announced two Protocols between the U.S. and Mexico that provide for sharing spectrum in the 800 MHz and 1.9 GHz bands along the U.S.-Mexican border. The execution of these agreements marks the beginning of the final phase for the nationwide rebanding of the 800 MHz band. The Protocols will help support commercial broadband services and public safety mission-critical communications along the U.S.-Mexico border and throughout the U.S. Specifically, the new 800 MHz Protocol (1) allots band segments between the U.S. and Mexico, (2) specifies technical parameters for operation on these band segments within 110 kilometers of the common border and (3) creates a bi-national Task Force to support the transition of incumbent operators along the border to the new allotment plan.

    Senate Commerce Privacy Protections Hearing

    The Senate Commerce, Science and Transportation Committee held a hearing titled “The Need for Privacy Protections: Is Industry Self-Regulation Adequate?” The key issue at the hearing was the extent to which the government can and should regulate data collection on the Internet to protect consumer privacy rights. Sens. Kelly Ayotte (R-NH) and John Thune (R-SD) expressed concern that any legislation by Congress would stifle innovation in the Internet industry. Sen. Amy Klobuchar (D-MN) expressed a belief in her opening statement that industry actions are moving in a positive way without government regulation, but that consumers need a larger voice in what happens to their data online. Committee Chairman Jay Rockefeller (D-WV) was skeptical that the industry would self-regulate and saw a need for government legislation to protect consumer privacy.

    Comment Deadline Set for Requests for an Exemption from FCC Closed Captioning Rules

    As we previously reported, the FCC concluded that it did not provide a reasoned decision for previously granted requests for exemption from its closed captioning rules. The FCC invited parties to file new requests for exemption and terminated previously granted requests. The FCC now seeks comment on the first set of requests for exemption of its closed captioning rules. Comments and oppositions are due by August 6, 2012.

    FCC Video Description Rules Now Effective

    The FCC’s video description rules are now effective for the top four broadcast affiliates (NBC, ABC, CBS and Fox) in the top 25 markets and for multichannel video programming distributor (MVPD) systems with more than 50,000 subscribers. The rules require audio-narrated descriptions of a television program’s key visual elements inserted into natural pauses in a program’s audio soundtrack. The top four broadcast affiliates in the top 25 markets are now required to provide 50 hours per calendar quarter of video-described prime time and/or children’s programming. MVPD systems with more than 50,000 subscribers that carry any of the top five non-broadcast networks (the Disney Channel, Nickelodeon, TBS, TNT and USA) must also provide 50 hours per calendar of video-described prime time and/or children’s programming. In most circumstances, covered broadcasters and MVPD systems are required to pass through video descriptions and include video descriptions in any reruns of such programming.

    FCC Seeks Comment on Public Safety Answering Point (PSAP) Do-Not-Call Registry

    The FCC adopted a Notice of Proposed Rulemaking to establish rules for a PSAP Do-Not-Call Registry as required by the Middle Class Tax Relief and Job Creation Act of 2012. The agency seeks comment on a number of issues related to the creation and maintenance of a PSAP Do-Not-Call Registry. In particular, the FCC is concerned about the unauthorized disclosure and distribution of PSAP telephone numbers on the Registry. Comments and reply comments are due by July 23, 2012 and August 6, 2012, respectfully.

    FCC Allocates Additional Spectrum for Vehicular Radar Systems

    The FCC released an order modifying the FCC’s rules to enable enhanced vehicular radar technologies in the 76-77GHz band for improved collision avoidance and driver safety. Vehicular radars can determine the exact distance and relative speed of objects in front of, beside, or behind a car to improve the driver’s ability to perceive objects under bad visibility conditions or objects in blind spots. In the order, the FCC comments on the increasing use of automobile radar systems and the likelihood that such systems will become relatively commonplace in the next few years. The additional spectrum will allow the automobile industry to continue developing new and improved vehicular radar systems without causing a measurable increase in potential interference to licensed services.

    Equipment Certification Changes and Order

    The FCC approved changes to Part 2 of its rules in order to increase the supply of FCC-issued grantee codes for radiofrequency (RF) devices. The FCC issues a unique code to each such device as part of its equipment authorization program. By removing the restriction that the grantee codes must consist of only three characters, the FCC greatly increased the supply of such codes so as to have new ones to assign to parties that wish to certify new equipment.

    FCC Extends Cramming FNPRM Reply Comment Deadline

    The FCC extended the deadline for filing comments on its Further Notice of Proposed Rulemaking (FNPRM) that proposed additional rules to help consumers prevent and detect unauthorized charges on their telephone bills, also known as “cramming.” Reply comments are now due by July 20, 2012.

    IP Relay Procedures Modified to Prevent Fraud and Abuse

    To prevent misuse of the Internet Protocol Relay Service (IP Relay), the FCC adopted revised procedures prohibiting IP Relay providers from processing non-emergency IP Relay calls from new users without first verifying the new user’s registration information. The revised procedures eliminate the ability of new users to make IP Reply calls as guest users prior to the completion of the registration process. The revised procedures were adopted to minimize IP Relay fraud and abuse.

    VOIP Outage Reporting

    Earlier this year, the FCC mandated that interconnected VOIP providers report systems outages to the FCC in accordance with the FCC’s existing outage reporting rules. VOIP providers are required to report outages using the FCC’s Network Outage Reporting System (NORS). The FCC’s voluntary Disaster Information Reporting System (DIRS) is now equipped to accept outage reports from interconnected VOIP providers. During emergencies or times of crisis, the FCC may waive NORS filing requirements for providers that are filing more detailed DIRS reports.

    Microwave Bands Study – Comments Sought

    The FCC is seeking comments on microwave coordination rejection rates for common carrier microwave systems in the 11 GHz, 18 GHz and 23 GHz bands. The definition of “rejection rate” includes applications made to the FCC and requests made to third-party coordinators for spectrum. Comments are due by July 20, 2012. The report is being prepared at the direction of the Middle Class Tax Relief and Job Act.

    Sunset of FCC Viewability Rule

    The FCC’s viewability rule requires cable operators with hybrid systems to carry digital must-carry signals in an analog format so the channels are available to analog-only subscribers. The FCC recently reviewed its viewability rule and determined that with the increased availability of no-cost and low-cost digital set-up boxes, its viewability rule is no longer necessary. A six month sunset period was adopted ending on December 12, 2012. For small cable system operators, the FCC extended for three additional years its high definition (HD) carriage exemption, which allows such operators to carry HD signals in standard definition (SD) digital and/or analog format.

    If you have questions regarding any of the items discussed above, or if you are interested in filing comments or receiving copies of filed comments in any of the FCC proceedings mentioned, please contact the Patton Boggs TechComm practice group.